Monday, 13 July 2015

Italy asks EU: Can we join unitary patent?

Italy has sent notification to the EU of "its intention to participate in the enhanced cooperation in the area of the creation of unitary patent protection and in the enhanced cooperation in the area of the creation of unitary patent protection with regard to the applicable translation arrangements".

The department for European affairs has a statement on its website. In our translation:

This morning I wrote to the Commissioner for the internal market, industry, entrepreneurship and SMEs, Elżbieta Bienkowska, and the presidency of Luxembourg announcing the Italian decision to join the European Union unitary patent.

What we have taken is a necessary and useful choice for Italian companies, that does not affect our position determined to defend the role of the Italian language in the European institutions.

Italy and the European Union need innovation to restart and I think this is a step in the right direction.

Until now Italy was the only country in the curious position that it had signed the Agreement on a unified patent court, but was not a party to the EU regulations on the unitary patent. In other words, Italy could have a court with the power the rule over unitary patents, even though those patents would not be valid in Italy.

Italy has now asked the EU to be counted in in the 'enhanced cooperation'.  As I remarked before any EU state can join the enhanced cooperation (Article 20 of the European Union Treaty). This means that it is virtually certain that Italy will join the unitary patent.

For unitary patents to be valid in Italy it is also needed that Italy ratifies the Agreement on a unified patent court. Given the fact that they have asked to join the unitary patent it seems highly likely that they will do so.  Thus it seems likely that unitary patent will be valid in Italy also.

After Italy there are two more countries that are not party to the EU regulations (Spain and Croatia). They could make the same move as Italy, though in case of Spain this seems unlikely. Interestingly if Croatia joins, patents that were filed before 2008 become ineligible for unitary effect. Should Croatia join after the unitary patent started we have the legal situation in which older patent applications retroactively loose eligibility for unitary effect.
Some countries who are party to the enhanced cooperation have announced that they will not ratify the Agreement (Poland). In practice this will amount to the same thing (unitary patents will not be valid, the unified court will have no jurisdiction).

Photo "Italy" by Moyan Brenn obtained via Flickr under CC BY 2.0 license (no changes made).

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